Page 1
130 Cal.App.4th 1264, 31 Cal.Rptr.3d 297, 05 Cal. Daily Op. Serv. 5998, 2005 Daily Journal D.A.R. 8193
(Cite as: 130 Cal.App.4th 1264, 31 Cal.Rptr.3d 297)
Court of Appeal, Sixth District, California.
Randall GILBERT, Plaintiff and Appellant,
v.
CITY OF SUNNYVALE, et al., Defendants and
Respondents.
No. H027237.
July 6, 2005.
Background: The Superior Court of Santa Clara
County, No. 1-03-CV004823,William J. Elfving, J.,
denied a petition for writ of mandate filed against a
city by a public safety officer who was terminated
for inappropriately accessing a law enforcement
database system and revealing the results of the
searches he ran to a third party. Officer appealed.
Holdings: The Court of Appeal, Elia, J., held that:
(1) all documents from internal affairs investigation
of officer were not required to be produced prior to
officer's pretermination hearing;
(2) due process does not create general rights of
discovery by public employee subject to a pretermination hearing;
(3) city was not required to select misconduct as
basis of discipline that may have been more difficult to prove, and
(4) mere fact that investigative report arose from
criminal investigation did not preclude its disclosure to officer.
on which the claim for relief is based. West's
Ann.Cal.C.C.P.
§§
1085,
1109;
West's
Ann.Cal.Evid.Code § 500.
[2] Mandamus 250
187.9(1)
250 Mandamus
250III Jurisdiction, Proceedings, and Relief
250k187 Appeal and Error
250k187.9 Review
250k187.9(1) k. Scope and Extent in
General. Most Cited Cases
In resolving questions of law on appeal from a
denial of a writ of mandate, an appellate court exercises
its
independent
judgment.
West's
Ann.Cal.C.C.P. § 1085.
[3] Constitutional Law 92
3875
92 Constitutional Law
92XXVII Due Process
92XXVII(B) Protections Provided and
Deprivations Prohibited in General
92k3875 k. Factors Considered; Flexibility and Balancing. Most Cited Cases
(Formerly 92k251.1)
Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to
time, place and circumstances; due process is flexible and calls for such procedural protections as the
particular
situation
demands.
U.S.C.A.
Const.Amends. 5, 14; West's Ann.Cal. Const. Art.
1, §§ 7, 15.
Affirmed.
[4] Constitutional Law 92
3879
West Headnotes
[1] Mandamus 250
167
250 Mandamus
250III Jurisdiction, Proceedings, and Relief
250k167 k. Issues, Proof, and Variance. Most
Cited Cases
In a petition for writ of mandate, the petitioner
bears the burden of pleading and proving the facts
92 Constitutional Law
92XXVII Due Process
92XXVII(B) Protections Provided and
Deprivations Prohibited in General
92k3878 Notice and Hearing
92k3879 k. In General. Most Cited
Cases
(Formerly 92k251.6)
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Constitutional Law 92
3881
92 Constitutional Law
92XXVII Due Process
92XXVII(B) Protections Provided and
Deprivations Prohibited in General
92k3878 Notice and Hearing
92k3881 k. Notice. Most Cited Cases
(Formerly 92k251.6)
The essence of procedural due process is notice and
an opportunity to respond; the purpose of notice is
to apprise the affected individual of, and permit adequate preparation for, an impending hearing, and
the content of notice depends on appropriate accommodation of the competing interests involved.
U.S.C.A. Const.Amends. 5, 14; West's Ann.Cal.
Const. Art. 1, §§ 7, 15.
[5] Constitutional Law 92
4025
92 Constitutional Law
92XXVII Due Process
92XXVII(F) Administrative Agencies and
Proceedings in General
92k4025 k. In General. Most Cited Cases
(Formerly 92k318(1))
A determination whether administrative procedures
are constitutionally sufficient under due process requires analysis of the governmental and private interests that are affected. U.S.C.A. Const.Amends. 5,
14.
[6] Constitutional Law 92
4171
92 Constitutional Law
92XXVII Due Process
92XXVII(G) Particular Issues and Applications
92XXVII(G)7 Labor, Employment, and
Public Officials
92k4163 Public Employment Relationships
92k4171 k. Termination or Discharge. Most Cited Cases
(Formerly 92k278.4(5))
The government has a strong interest in terminating
law enforcement officers who are of questionable
moral character, and in doing so in an expeditious,
efficient, and financially unburdensome manner,
which governmental interest must be considered in
determining what process is due. U.S.C.A.
Const.Amends. 5, 14; West's Ann.Cal. Const. Art.
1, §§ 7, 15; West's Ann.Cal.Gov.Code § 3300 et
seq.
[7] Constitutional Law 92
4172(6)
92 Constitutional Law
92XXVII Due Process
92XXVII(G) Particular Issues and Applications
92XXVII(G)7 Labor, Employment, and
Public Officials
92k4163 Public Employment Relationships
92k4172 Notice and Hearing; Proceedings and Review
92k4172(6) k. Termination or
Discharge. Most Cited Cases
(Formerly 92k278.4(5))
Municipal Corporations 268
185(8)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of
Policemen
268k185(8) k. Conduct of Hearing
in General. Most Cited Cases
Each and every document identified in internal affairs investigation of public safety officer was not
required to be produced prior to officer's pretermination hearing in order to satisfy due process; notice
of the substance of the relevant supporting evidence
was sufficient to enable officer to adequately respond at the pretermination stage. U.S.C.A.
Const.Amends. 5, 14; West's Ann.Cal. Const. Art.
1, §§ 7, 15; West's Ann.Cal.Gov.Code § 3300 et
seq.
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130 Cal.App.4th 1264, 31 Cal.Rptr.3d 297, 05 Cal. Daily Op. Serv. 5998, 2005 Daily Journal D.A.R. 8193
(Cite as: 130 Cal.App.4th 1264, 31 Cal.Rptr.3d 297)
[8] Constitutional Law 92
4172(6)
92 Constitutional Law
92XXVII Due Process
92XXVII(G) Particular Issues and Applications
92XXVII(G)7 Labor, Employment, and
Public Officials
92k4163 Public Employment Relationships
92k4172 Notice and Hearing; Proceedings and Review
92k4172(6) k. Termination or
Discharge. Most Cited Cases
(Formerly 92k278.4(5))
Constitutional principles of due process do not create general rights of discovery by a public employee subject to a pretermination hearing; what is required is an unambiguous warning that matters
have come to a head, coupled with an explicit notice to the employee that he or she now has the opportunity to engage the issue and present the reasons opposing such a disposition. U.S.C.A.
Const.Amends. 5, 14; West's Ann.Cal. Const. Art.
1, §§ 7, 15.
See 7 Witkin, Summary of Cal. Law (9th ed. 1988)
Constitutional Law, § 518.
[9] Constitutional Law 92
4168
92 Constitutional Law
92XXVII Due Process
92XXVII(G) Particular Issues and Applications
92XXVII(G)7 Labor, Employment, and
Public Officials
92k4163 Public Employment Relationships
92k4168 k. Discipline. Most Cited
Cases
(Formerly 92k278.4(3))
Municipal Corporations 268
185(1)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Of-
ficers Thereof
268k179 Police
268k185 Suspension and Removal of
Policemen
268k185(1) k. Grounds for Removal or Suspension. Most Cited Cases
Due process did not require city to select, as the
basis for its disciplinary action against a public
safety officer, instances of misconduct that might
be more difficult to prove or that might compromise other governmental investigations or prosecutions when it had clear-cut evidence of misconduct
that
itself
justified
dismissal.
U.S.C.A.
Const.Amends. 5, 14; West's Ann.Cal. Const. Art.
1, §§ 7, 15; West's Ann.Cal.Gov.Code § 3300 et
seq.
[10] Mandamus 250
76
250 Mandamus
250II Subjects and Purposes of Relief
250II(B) Acts and Proceedings of Public Officers and Boards and Municipalities
250k76 k. Appointment or Removal of
Public Officers or Employees. Most Cited Cases
In mandamus proceedings by a public safety officer
terminated for misconduct, officer bore the burden
of pleading and proving that his suspected involvement in a prostitution scandal was the real reason
for the intended disciplinary action, as opposed to
the city's stated reasons, and that the materials received prior to his pretermination hearing were not
sufficient to provide him an opportunity to meaningfully respond at the pretermination stage.
[11] Constitutional Law 92
4172(6)
92 Constitutional Law
92XXVII Due Process
92XXVII(G) Particular Issues and Applications
92XXVII(G)7 Labor, Employment, and
Public Officials
92k4163 Public Employment Relationships
92k4172 Notice and Hearing; Pro-
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(Cite as: 130 Cal.App.4th 1264, 31 Cal.Rptr.3d 297)
ceedings and Review
92k4172(6) k. Termination or
Discharge. Most Cited Cases
(Formerly 92k278.4(5))
The minimal due process rights required for a public employee prior to discharge are merely anticipatory of the full rights which are accorded to the
employee after discharge. U.S.C.A. Const.Amends.
5, 14; West's Ann.Cal. Const. Art. 1, §§ 7, 15.
[12] Municipal Corporations 268
185(3)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of
Policemen
268k185(3) k. Proceedings to Remove in General. Most Cited Cases
A city's legal advisor, in the case of disciplinary
proceedings against a public safety officer for misconduct, was not disqualified by reason of having
performed various legal services for the city over
the years, including serving as interim city attorney;
attorney's role was limited to that of a professional
legal advisor, who presumably was familiar with
applicable law and would be seeking to protect the
city from civil liability for misapplications of the
law.
[13] Statutes 361
181(1)
361 Statutes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k180 Intention of Legislature
361k181 In General
361k181(1) k. In General. Most
Cited Cases
Statutes 361
184
361 Statutes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k180 Intention of Legislature
361k184 k. Policy and Purpose of Act.
Most Cited Cases
In statutory construction, court must ascertain the
intent of the drafters so as to effectuate the purpose
of the law.
[14] Statutes 361
188
361 Statutes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k187 Meaning of Language
361k188 k. In General. Most Cited
Cases
Statutes 361
208
361 Statutes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k204 Statute as a Whole, and Intrinsic
Aids to Construction
361k208 k. Context and Related
Clauses. Most Cited Cases
Because the statutory language is generally the
most reliable indicator of legislative intent, courts
first examine the words themselves, giving them
their usual and ordinary meaning and construing
them in context.
[15] Statutes 361
190
361 Statutes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k187 Meaning of Language
361k190 k. Existence of Ambiguity.
Most Cited Cases
When statutory language is clear and unambiguous,
there is no need for construction and courts should
not indulge in it.
[16] Constitutional Law 92
92 Constitutional Law
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
994
Page 5
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(Cite as: 130 Cal.App.4th 1264, 31 Cal.Rptr.3d 297)
92VI Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional
Questions
92VI(C)3 Presumptions and Construction
as to Constitutionality
92k994 k. Avoidance of Constitutional
Questions. Most Cited Cases
(Formerly 92k48(1))
The rule of statutory construction that requires
courts to construe statutes to avoid constitutional
infirmities does not come into play unless there is
an ambiguity that raises serious constitutional questions.
[17] Municipal Corporations 268
185(3)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of
Policemen
268k185(3) k. Proceedings to Remove in General. Most Cited Cases
Although notions of fundamental fairness and protection of peace officers from abusive or arbitrary
treatment in their employment is the essence of the
Public Safety Officers Procedural Bill of Rights
Act, a number of its provisions also reflect the Legislature's recognition of the necessity for internal
affairs investigations to maintain the efficiency and
integrity of the police force serving the community.
West's Ann.Cal.Gov.Code § 3300 et seq.
[18] Municipal Corporations 268
185(8)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of
Policemen
268k185(8) k. Conduct of Hearing
in General. Most Cited Cases
Fair treatment under the Public Safety Officers Procedural Bill of Rights Act, of public safety officer
under disciplinary investigation, does not require
that all the material amassed in the course of the investigation, such as raw notes, written communications, records obtained, and interviews conducted,
be provided to the officer following the officer's interrogation. West's Ann.Cal.Gov.Code § 3303(g).
[19] Municipal Corporations 268
185(8)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of
Policemen
268k185(8) k. Conduct of Hearing
in General. Most Cited Cases
Nothing in the Public Safety Officers Procedural
Bill of Rights Act's language or legislative history
reveals a legislative intent to provide an officer who
is the subject of an administrative internal affairs
investigation with broad statutory discovery rights
similar to those held by criminal defendants. West's
Ann.Cal.Gov.Code § 3300 et seq.
[20] Municipal Corporations 268
185(8)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of
Policemen
268k185(8) k. Conduct of Hearing
in General. Most Cited Cases
Under the Public Safety Officers Procedural Bill of
Rights Act, the mere fact that a report originated
from a criminal investigation, either by the employing public safety department or an outside agency,
necessarily excused a city from making such report
available to an officer being investigated, where it
was expressly made part of the city's internal affairs
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(Cite as: 130 Cal.App.4th 1264, 31 Cal.Rptr.3d 297)
investigation
of
the
Ann.Cal.Gov.Code § 3303(g).
officer.
[21] Municipal Corporations 268
West's
250I Nature and Grounds in General
250k10 k. Nature and Existence of Rights to
Be Protected or Enforced. Most Cited Cases
185(8)
Mandamus 250
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of
Policemen
268k185(8) k. Conduct of Hearing
in General. Most Cited Cases
Nothing in Public Safety Officers Procedural Bill of
Rights Act absolved a city from providing any report expressly included in its investigation to the
officer under investigation merely because the report arose in another agency's investigation or because the original document was physically in the
possession of that outside agency. West's
Ann.Cal.Gov.Code § 3303(g).
[22] Municipal Corporations 268
185(8)
268 Municipal Corporations
268V Officers, Agents, and Employees
268V(B) Municipal Departments and Officers Thereof
268k179 Police
268k185 Suspension and Removal of
Policemen
268k185(8) k. Conduct of Hearing
in General. Most Cited Cases
Public Safety Officers Procedural Bill of Rights Act
empowers the investigating agency to deem reports
confidential and excepts items so designated from
the agency's obligation of disclosure to officer being investigated, and nothing in the Act limits an
investigating agency's power to designate reports
confidential to materials protected by statutory
privilege. West's Ann.Cal.Gov.Code § 3303(g).
[23] Mandamus 250
250 Mandamus
10
12
250 Mandamus
250I Nature and Grounds in General
250k12 k. Nature of Acts to Be Commanded.
Most Cited Cases
Two basic requirements are essential to the issuance of a writ of mandamus: (1) a clear, present and
usually ministerial duty upon the part of the respondent, and (2) a clear, present and beneficial
right in the petitioner to the performance of that
duty. West's Ann.Cal.C.C.P. § 1085.
**300 Craig M. Brown, San Jose, Attorney for
Plaintiff and Appellant.
Joan A. Borger, City Attorney-Sunnyvale, Liebert
Cassidy Whitmore and Cynthia O'Neill, San Francisco, Attorneys for Defendants and Respondents.
ELIA, J.
*1270 Randall Gilbert, formerly a public safety officer with the City of Sunnyvale, **301 was terminated from his employment for cause. He appeals
from the denial of his petition for a preemptory writ
of mandate.
His petition alleged denials of procedural due process and noncompliance with Government Code
section 3303, subdivision (g), a provision of the
Public Safety Officers Procedural Bill of Rights Act
(Gov.Code, § 3300 et seq.) (“Bill of Rights Act” or
FN1
“Act”).
On appeal, appellant Gilbert asserts
that his termination was based upon respondents'
conclusion that he was “on the take” and the respondents' constitutional and statutory violations
have prevented him “from adequately and fairly responding to those allegations and *1271 from disproving them.” Additionally, appellant insists that
to comport with due process, “the ‘legal advisor’ to
the Personnel Board [during the appeal process]
should not be an attorney hired and paid for by the
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(Cite as: 130 Cal.App.4th 1264, 31 Cal.Rptr.3d 297)
City with a past relationship with the City and with
future expectation of further employment by the
City.”
FN1. All further statutory references are to
the Government Code unless otherwise
stated.
We find no merit to his contentions and affirm.
A. Background
The appellant's alleged conduct that led to the disciplinary action against him was discovered in the
context of a larger investigation into an alleged
prostitution business. Captain Chuck Eaneff with
the Sunnyvale Department of Public Safety, stated
in his declaration: “In April 2000, the Department
of Public Safety was contacted by citizen informants about illegal activity at a Korean hostess bar in
Sunnyvale known as the Crystal Palace. An initial
investigation was commenced. In June 2000 the
Department contacted the Federal Bureau of Investigation (FBI). Shortly thereafter, the FBI opened an
investigation and began covert undercover activity.” Captain Eaneff indicated that the investigation
involved the State Department of Justice, the
United States Attorney, the Internal Revenue Service, the Immigration and Naturalization Service,
and the California Alcoholic Beverage Control
Commission and it extended beyond the borders of
California.
Eaneff stated that, on July 22, 2002, various suspects were arrested and “[l]ocally, ... the Assistant
United State[s] Attorney issued criminal complaints
against 6 defendants....” In the course of the foregoing investigation, four or more public safety officers, including appellant, had been “observed in
activities giving rise to concerns of improper conduct.” According to Eaneff, “[o]n October 24, 2002
the Director of Public Safety/Chief initiated a
Chief's Case (a type of internal affairs investigation) with regard to activities possibly in violation
of local rules and regulations engaged in by the
three officers who remained employed by the City
of Sunnyvale.”
Lieutenant Christopher Carrion stated in his declaration that he was assigned to conduct the internal
affairs investigation known as Chief's Case CR02-12351. According to the lieutenant, “[t]he investigation contained 16 allegations, 7 involving
Petitioner Gilbert, 2 involving a second officer and
7 involving a third officer.”
The Sunnyvale Department of Public Safety
(Department or DPSS) placed appellant Gilbert on
administrative leave on November 11, 2002. The
Department's Director, Chief Irwin I. Bakin, issued
a memo to all personnel, announcing that Gilbert
had been placed on administrative leave “related to
*1272 the Korean hostess bar investigation.” On
November 11, 2002, appellant received formal notice, which informed him that allegations of misconduct had been filed with the Department,**302
directed him to contact Internal Affairs Investigation Lieutenant Carrion to arrange an interview, and
advised him that failure to comply would result in
discipline. Lieutenant Carrion personally presented
the notice to appellant. On November 14, 2002,
Lieutenant Carrion interrogated appellant.
On January 17, 2003, Lieutenant Carrion submitted
an investigation report, the Chief's Case CR
02-12351 (hereinafter “Chief's Case”), to Chief
Bakin. On February 6, 2003, appellant received a
Notice of Intended Discipline, which advised him
that Bakin intended to recommend to the City Manager that appellant be terminated effective February
28, 2003. At or about that time, appellant also received the Chief's Case.
The notice set forth the grounds for dismissal and
the supporting facts. The focus of the disciplinary
action was appellant's conduct on March 10 and 11,
2002 in accessing DMV computer files, obtaining
confidential information, and releasing confidential
DMV information over the phone to an unidentified
female without a legitimate law enforcement purpose. The notice also indicated that on October 6,
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2000, appellant, while on duty, had accepted a meal
without charge from Crystal Palace owner Roger
Li.
The notice indicated that the disciplinary action
was based upon “the information contained herein
and in the documents provided in Chief's Case
CR02-12351.” It informed appellant that copies of
taped witness interviews and any photographs taken
during the course of the investigation pertaining to
the disciplinary action would be made available to
him upon request. The notice explained the upcoming opportunity to respond and the written appeal
process.
The Chief's Case stated that the “source documents” supporting many of the allegations remain
with the Federal Bureau of Investigation (FBI) and
that the federal case “remains open and active.” It
further provided: “When the Federal case dictates,
source documents will be released to the Sunnyvale
Department of Public Safety.” It indicated that the
information contained in the report came from a
number of individuals within the City and the Department of Justice Records Bureau and “[m]uch of
the information was communicated” to a named detective by FBI investigators.
The Chief's Case provided background information
describing the appellant's activities predating the alleged misconduct, which it concluded shows that
“[Officer] Gilbert assisted the owners and operators
of the Crystal Palace in the prostitution business.”
Those activities identified in the Chief's Case
*1273 included appellant visiting the Crystal Palace
numerous times and driving Asian females in his
personal vehicle to residences of prostitutes, and
telephoning massage businesses and businesses associated with prostitution, residences of prostitutes,
and the female proprietor of the Crystal Palace.
The Chief's Case indicated the FBI had advised
that, on March 7, 2002, FBI surveillance vehicles
followed the Crystal Palace proprietors' vehicle
during a trip to the airport to pick up a prostitute
but apparently were spotted. The male proprietor of
the Crystal Palace was seen writing down license
plates.
The Chief's Case sustained six allegations of misconduct by appellant. Four of the allegations involved appellant accessing DMV files utilizing a
Sunnyvale Department of Public Safety computer
terminal while on duty and without legitimate law
enforcement purpose on March 10, 2002 or March
11, 2002. According to the investigation report,
evidence showed that **303 appellant was on duty
as desk officer during the relevant times on March
10 and 11, 2002, official inquiries were made as to
two license plate numbers from a terminal assigned
to the Department, the operator identification number used in each instance belonged to appellant, one
of the license plate numbers belonged to a FBI
agent's vehicle, and the other license plate number
was one digit off from one of the FBI surveillance
vehicles. A fifth allegation involved appellant
verbally releasing confidential DMV information
over the phone, while on duty and without legitimate law enforcement purpose, to an unidentified female on March 10, 2002. The Chief's Report stated
that “[Officer] Gilbert received favors from the
house of prostitution and in exchange unlawfully
accessed state and federal computer systems, running two undercover F.B.I. license plates involved
in the covert surveillance of the pickup of a prostitute at the San Jose airport.”
A sixth sustained allegation stated that appellant
had accepted and consumed a meal, which Crystal
Palace owner Roger Li provided without charge,
while appellant was on duty and in full police uniform on October 6, 2000. The Chief's Case did not
sustain an allegation that appellant failed to report
violations of State and Federal Laws, City Ordinances and Departmental Orders by other Department employees. The remaining nine allegations involved other officers.
In response to his request, appellant received 10 audiotapes consisting of interviews with him, Captain
Eaneff, Officer Lecy, and Lt. Verbrugge, and the
March 10, 2002 and March 11, 2002 telephone
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calls. A pretermination hearing was held on February 20, 2003, and the City Manager terminated appellant effective February 28, 2003. Appellant appealed the decision to the City's Personnel Board.
*1274 On June 23, 2003, in response to a June 9,
2003 letter from appellant's attorney complaining
that appellant had not received all the relevant investigatory materials, the City Attorney sent a letter
to appellant's attorney identifying additional materials being provided to appellant's attorney. Additional materials were provided, including, inter alia,
several crime reports, interview statements, a State
Department of Justice letter regarding possible
CLETS misuse, and a redacted FBI undercover reFN2
port.
The City Attorney's letter explained:
“References in Chief's Case CR# 02-12351 to actions taken by the FBI in the course of the FBI's investigation are not materials the Department of
Public Safety has or has access to, and most information ‘communicated to Det. Lt. Tom Piatanesi
from the Federal Bureau of Investigation case investigators' was communicated orally so there are
no supporting materials. Similarly, when Lt. Verbrugge was invited to view FBI videos it was for
the purpose of identifying individuals on the videos
to the FBI. The City did not receive copies of those
videos. The FBI case is still ongoing and the City
does not have authority to do anything which might
compromise that case.”
FN2. The Chief's Case defines CLETS:
“The California Law Enforcement Telecommunications System (CLETS) is a
high-speed message computer network of
Local, State and Federal databases and systems. It provides all law enforcement user
agencies with the capability of obtaining
information directly from State and Federal computerized information files.”
In a subsequent letter dated July 16, 2003 to appellant's attorney, the City Attorney disputed that there
FN3
had been a Skelly
violation. She maintained
that appellant Gilbert had not been disciplined on
the ground he had assisted the owners and **304
operators of the Crystal Palace in the prostitution
business. She emphasized that appellant had been
“disciplined for inappropriately accessing the
CLETS system and revealing the results of the
searches he ran to a third party.”
FN3. Skelly v. State Personnel Bd. (1975)
15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d
774.
As of the date of Captain Eaneff's October 2003 declaration, the federal case was still pending and was
“still in discovery in conjunction with the criminal
indictments.”
As of the date of appellant's December 2003 declaration, he had not received certain specified documents, including FBI and other source documents,
FBI wiretap materials, and a grand jury telephone
matrix.
B. Writ of Mandate
[1][2] “In a petition for writ of mandate brought
pursuant to Code of Civil Procedure section 1085,
... the petitioner bears the burden of pleading and
proving the facts on which the claim for relief is
based. (*1275Code Civ. Proc., § 1109; Evid.Code,
§ 500; [citations].)” (California Correctional Peace
Officers Assn. v. State Personnel Bd. (1995) 10
Cal.4th 1133, 1153-1154, 43 Cal.Rptr.2d 693, 899
P.2d 79.) In resolving questions of law on appeal
from a denial of a writ of mandate, an appellate
court exercises its independent judgment. (See
County of San Diego v. State of California (1997)
15 Cal.4th 68, 109, 61 Cal.Rptr.2d 134, 931 P.2d
312; Burden v. Snowden (1992) 2 Cal.4th 556, 562,
7 Cal.Rptr.2d 531, 828 P.2d 672.)
C. Procedural Due Process
1. Skelly Rights
Appellant essentially asserts that, as a matter of
procedural due process, he was entitled to all docu-
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ments identified in the Chief's Case prior to his pretermination hearing on February 20, 2003, pursuant
to Skelly v. State Personnel Bd., supra, 15 Cal.3d
194, 124 Cal.Rptr. 14, 539 P.2d 774. Appellant specifies that he was timely denied, among other documents, (1) the Department's criminal investigation
report (CR 02-11786), (2) the grand jury subpoena
for telephone numbers, which lists all contact telephone numbers for individuals identified as a result
of the FBI investigation, (3) the FBI general activity report for surveillance between June 26, 2000
and March 7, 2002, and (4) Lieutenant Piatanesi's
case notes documenting communications between
federal agencies. These items were identified in the
Chief's Case as being “contained within” or
“included within” the investigation. He seeks back
pay beginning March 1, 2003 “continuing until
such time as he is provided with all of the materials
giving rise to the disciplinary action, and then receives a predisciplinary hearing at which he can
truly respond to the allegations, or alternatively, until such time as Respondents comply with the requirements of the ‘Act’ and thereafter provide
[him] with a fair hearing before the Personnel
Board.”
In Skelly v. State Personnel Bd., supra, 15 Cal.3d
194, 124 Cal.Rptr. 14, 539 P.2d 774, the California
Supreme Court determined that “due process does
not require the state to provide the [permanent civil
service] employee with a full trial-type evidentiary
hearing prior to the initial taking of punitive action.” (Id. at p. 215, 124 Cal.Rptr. 14, 539 P.2d
774.) The court held that “the provisions of the
State Civil Service Act, including in particular section 19574, governing the taking of punitive action
against a permanent civil service employee violate
the due process clauses of the Fifth and Fourteenth
Amendments to the United States Constitution and
of article I, sections 7 and 15 of the California Constitution” because punitive disciplinary action
against an employee cannot properly be taken by
simple notification. **305(Skelly v. State Personnel
Bd., supra, 15 Cal.3d at pp. 202, 215, 124 Cal.Rptr.
14, 539 P.2d 774.) Relying heavily upon its under-
standing of the various opinions in Arnett v.
Kennedy (1974) 416 U.S. 134, 94 S.Ct. 1633, 40
L.Ed.2d 15 (plurality opinion with concurring and
dissenting opinions), which upheld the constitutionality of the statutory procedure for disciplining nonprobationary federal *1276 civil service employees,
the California high court determined that the minimum procedural due process protections required
before disciplinary action became effective included “notice of the proposed action, the reasons
therefor, a copy of the charges and materials upon
which the action is based, and the right to respond,
either orally or in writing, to the authority initially
imposing discipline.” (Skelly v. State Personnel
Bd., supra, 15 Cal.3d at p. 215, 124 Cal.Rptr. 14,
539 P.2d 774, italics added.)
In Arnett, the Supreme Court considered the federal
removal procedures, which included a Civil Service
Commission regulation that provided that “the material on which the notice [of proposed adverse action against an employee] is based and which is relied on to support the reasons in that notice, including statements of witnesses, documents, and investigative reports or extracts therefrom, shall be assembled and made available to the employee for his
review.” (Arnett v. Kennedy, supra, 416 U.S. at p.
143, fn. 9, 94 S.Ct. 1633, italics added.) The plurality view that a federal nonprobationary Civil Service employee did not have “an expectancy of job
retention” that required “procedural protection under the Due Process Clause beyond that afforded
here by the [applicable federal] statute and related
agency regulations” (id. at p. 163, 94 S.Ct. 1633)
was later rejected by the Supreme Court. (Cleveland Bd. of Educ. v. Loudermill (1985) 470 U.S.
532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494.)
[3] Subsequent to Skelly, the California Supreme
Court and the United States Supreme Court have repeatedly recognized that due process is a flexible
concept. (See e.g. Civil Service Assn. v. City and
County of San Francisco (1978) 22 Cal.3d 552,
561, 150 Cal.Rptr. 129, 586 P.2d 162; Gilbert v.
Homar (1997) 520 U.S. 924, 930, 117 S.Ct. 1807,
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138 L.Ed.2d 120.) “It is by now well established
that ‘ “due process,” unlike some legal rules, is not
a technical conception with a fixed content unrelated to time, place and circumstances.’ Cafeteria &
Restaurant Workers v. McElroy, 367 U.S. 886, 895,
81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). ‘[D]ue
process is flexible and calls for such procedural
protections as the particular situation demands.’
Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct.
2593, 2600, 33 L.Ed.2d 484 (1972). [The United
States Supreme] Court has recognized, on many occasions, that where a State must act quickly, or
where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause.
See, e.g., United States v. James Daniel Good Real
Property, 510 U.S. 43, 53, 114 S.Ct. 492, 500-501,
126 L.Ed.2d 490 (1993); Zinermon v. Burch, 494
U.S. 113, 128, 110 S.Ct. 975, 984-985, 108 L.Ed.2d
100 (1990) (collecting cases); Barry v. Barchi, 443
U.S. 55, 64-65, 99 S.Ct. 2642, 2649-2650, 61
L.Ed.2d 365 (1979); Dixon v. Love, 431 U.S. 105,
115, 97 S.Ct. 1723, 1729, 52 L.Ed.2d 172 (1977);
North American Cold Storage Co. v. Chicago, 211
U.S. 306, 314-320, 29 S.Ct. 101, 103-106, 53 L.Ed.
195 (1908).” *1277(Gilbert v. Homar, supra, 520
U.S. at p. 930, 117 S.Ct. 1807 [due process clause
did not entitle state university employee to notice
and hearing prior to his suspension without pay
based on his arrest on drug-related charges].)
In **306Cleveland Bd. of Educ. v. Loudermill,
supra, 470 U.S. at page 541, 105 S.Ct. 1487, the
United States Supreme Court considered an Ohio
state law that entitled a dismissed public employee
to a full post-dismissal administrative hearing and
judicial review. (Id. at p. 545, 105 S.Ct. 1487.)
Consequently, “[t]he only question [was] what
steps were required before the termination took effect.” (Ibid.) The high court concluded that “all the
process that is due is provided by a pretermination
opportunity to respond, coupled with posttermination administrative procedures as provided
by the Ohio statute.” (Id. at pp. 547-548, 105 S.Ct.
1487.) The court explained: “[T]he pretermination
‘hearing,’ though necessary, need not be elaborate.
[The United States Supreme Court has] pointed out
that ‘[t]he formality and procedural requisites for
the hearing can vary, depending upon the importance of the interests involved and the nature of the
subsequent proceedings.’ Boddie v. Connecticut,
401 U.S., [371] at 378, 91 S.Ct., [780] at 786 [28
L.Ed.2d 113 (1971)]. See Cafeteria Workers v.
McElroy, 367 U.S. 886, 894-895, 81 S.Ct. 1743,
1748, 6 L.Ed.2d 1230 (1961). In general,
‘something less' than a full evidentiary hearing is
sufficient prior to adverse administrative action.
Mathews v. Eldridge, 424 U.S., [319] at 343, 96
S.Ct., [893] at 907 [47 L.Ed.2d 18 (1976)].” (Id. at
p. 545, 105 S.Ct. 1487.)
The high court determined that in circumstances
providing for a full hearing posttermination, the
pretermination hearing “should be an initial check
against mistaken decisions-essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true
and support the proposed action. See Bell v.
Burson, 402 U.S., [535] at 540, 91 S.Ct., [1586] at
1590 [29 L.Ed.2d 90 (1971)].” (Cleveland Bd. of
Educ. v. Loudermill, supra, 470 U.S. at pp.
545-546, 105 S.Ct. 1487.) “The opportunity to
present reasons, either in person or in writing, why
proposed action should not be taken is a fundamental due process requirement. See Friendly, ‘
Some Kind of Hearing,’ 123 U.Pa.L.Rev. 1267,
1281 (1975). The tenured public employee is entitled to oral or written notice of the charges against
him, an explanation of the employer's evidence, and
an opportunity to present his side of the story.
[Citations.] To require more than this prior to termination would intrude to an unwarranted extent on
the government's interest in quickly removing an
unsatisfactory employee.” (Id. at p. 545, 105 S.Ct.
1487, italics added.) The court made clear that its
holding “rest [ed] in part on the provisions in Ohio
law for a full post-termination hearing.” (Id. at p.
546, 105 S.Ct. 1487.) It observed that “the existence of post-termination procedures is relevant to
the necessary scope of pretermination procedures.”
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(Id. at p. 547, fn. 12, 105 S.Ct. 1487.)
Subsequently, in Brock v. Roadway Exp., Inc.
(1987) 481 U.S. 252, 255, 107 S.Ct. 1740, 95
L.Ed.2d 239, the United States Supreme Court considered *1278 the issue whether the failure of Section 405 of the Surface Transportation Assistance
Act of 1982, 96 Stat. 2157, 49 U.S.C.App. § 2305,
which protects employees in the commercial motor
transportation industry from retaliatory discharges,
“to provide for an evidentiary hearing before temporary reinstatement [of a discharged employee]
deprives the employer of procedural due process
under the Fifth Amendment.” (Id. at p. 255, 107
S.Ct. 1740.) Under the statute, the employer was
entitled to “request an evidentiary hearing and a final decision from the Secretary [of Labor], but this
request [did] not operate to stay the preliminary order of reinstatement.” (Ibid.)
The Supreme Court in Brock held that “the Secretary's preliminary reinstatement order was unconstitutionally imposed in **307 this case because [the
employer] was not informed of the relevant evidence supporting [the employee's] complaint and
therefore was deprived of an opportunity to prepare
a meaningful response.” (Id. at p. 268, 107 S.Ct.
1740.) The high court explained: “In Loudermill,
the Court considered the temporary deprivation of a
state government employee's right not to be discharged without cause, indicating that the employee
was entitled to ‘oral or written notice of the charges
against him, an explanation of the employer's evidence, and an opportunity to present his side of the
story’ before the temporary discharge took effect,
though a full evidentiary hearing including the right
to confront and cross-examine adverse witnesses
could be delayed for a reasonable period. 470 U.S.,
at 546, 105 S.Ct., at 1495. Similarly, in Arnett v.
Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d
15 (1974), the Court upheld the procedures upon
which a Federal Government employee had been
temporarily discharged, where those procedures did
not provide for a full evidentiary hearing until after
the discharge became effective but did afford the
employee ‘advance written notice of the reasons for
his proposed discharge and the materials on which
the notice [was] based,’ as well as ‘the right to respond to the charges both orally and in writing, including the submission of affidavits.’ Id., at 170, 94
S.Ct., at 1652 (opinion of POWELL, J.). These
cases reflect that the constitutional requirement of a
meaningful opportunity to respond before a temporary deprivation may take effect entails, at a minimum, the right to be informed not only of the nature
of the charges but also of the substance of the relevant supporting evidence. If the employer is not
provided this information, the procedures implementing § 405 contain an unacceptable risk of erroneous decisions.” (Id. at pp. 264-265, 107 S.Ct.
1740, italics added.) The court concluded:
“[M]inimum due process for the employer in this
context requires notice of the employee's allegations, notice of the substance of the relevant supporting evidence, an opportunity to submit a written
response, and an opportunity to meet with the investigator and present *1279 statements from rebuttal witnesses. The presentation of the employer's
witnesses need not be formal, and cross-examination of the employee's witnesses need not be
afforded at this stage of the proceedings.” (Id. at p.
264, 107 S.Ct. 1740, italics added.)
[4] The essence of procedural due process is notice
and an opportunity to respond. (Cleveland Bd. of
Educ. v. Loudermill, supra, 470 U.S. 532, 546, 105
S.Ct. 1487.) “The purpose of notice under the Due
Process Clause is to apprise the affected individual
of, and permit adequate preparation for, an impending ‘hearing.’ ” (Memphis Light, Gas and Water Division v. Craft (1978) 436 U.S. 1, 14, 98 S.Ct.
1554, 56 L.Ed.2d 30, fn. omitted.) The content of
notice depends on “appropriate accommodation of
the competing interests involved. Cafeteria Workers v. McElroy, supra, 367 U.S. at 895, 81 S.Ct. at
1748; Morrissey v. Brewer, supra, 408 U.S. at 481,
92 S.Ct. at 2600. ” (Goss v. Lopez (1975) 419 U.S.
565, 579, 581, 95 S.Ct. 729, 42 L.Ed.2d 725 [due
process requires that a student facing temporary
suspension be given “oral or written notice of the
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charges against him and, if he denies them, an explanation of the evidence the authorities have and
an opportunity to present his side of the story”].)
[5][6] A determination whether administrative procedures “are constitutionally sufficient requires
analysis of the governmental and private interests
that are affected. Arnett v. Kennedy, supra, 416
U.S., at 167-168, 94 S.Ct., at 1650-1651 (Powell,
J., concurring in part); **308Goldberg v. Kelly,
supra, 397 U.S., [254] at 263-266, 90 S.Ct., [1011]
at 1018-1020 [25 L.Ed.2d 287 (1970)]; Cafeteria
Workers v. McElroy, supra, 367 U.S., at 895, 81
S.Ct., at 1748-1749. ” (Mathews v. Eldridge (1976)
424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18.)
The government has a strong interest “ ‘in terminating law enforcement officers who are of questionable moral character, and in doing so in an expeditious, efficient, and financially unburdensome manner.’ (Murden [v. County of Sacramento (1984) 160
Cal.App.3d [302,] 311 [206 Cal.Rptr. 699]; see Gilbert [v. Homar (1997) 520 U.S. [924,] 932-933
[117 S.Ct. at p. 1813, 138 L.Ed.2d at p. 126].) ” (
Holmes v. Hallinan (1998) 68 Cal.App.4th 1523,
1532, 81 Cal.Rptr.2d 174; see Gilbert v. Homar,
supra, 520 U.S. at p. 932, 117 S.Ct. 1807 [state university has an interest in “preserving public confidence in its police force”]; see also Cleveland Board
of Education v. Loudermill, supra, 470 U.S. at pp.
543, 546, 105 S.Ct. 1487 [government has an interest in the expeditious removal of unsatisfactory
employees].) This governmental interest must be
considered in determining what process is due. (See
Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 556, 150 Cal.Rptr. 129,
586 P.2d 162; see also Cleveland Bd. of Educ. v.
Loudermill, supra, 470 U.S. at p. 541, 105 S.Ct.
1487 [“once it is determined that the Due Process
Clause applies, ‘the question remains what process
is due’ ”].)
[7] *1280 We reject appellant's contention that the
word “materials” as used in Skelly means each and
every document identified in the Chief's Case was
required to be produced prior to his pretermination
hearing in order to satisfy due process. Even the
regulation in Arnett, upon which Skelly relied, allowed for “extracts ” from witness statements, documents, and investigative reports. (Arnett v.
Kennedy, supra, 416 U.S. at p. 143, fn. 9, 94 S.Ct.
1633.) The Chief's Case contains verbatim excerpts
of his telephone conversations with an unidentified
female in which appellant was provided with two
license plate numbers, the results of internal DMV
and DOJ journal searches showing inquiries into
those vehicle license plate numbers from specified
terminals using an operation number that corresponded with appellant's employee number, and excerpts from other relevant documents, including
transcribed interviews. The Chief's Case together
with the other materials made available to appellant
prior to his pretermination hearing adequately
provided “an explanation of the employer's evidence” (Cleveland Bd. of Educ. v. Loudermill, supra,
470 U.S. at p. 546, 105 S.Ct. 1487) and “notice of
the substance of the relevant supporting evidence” (
Brock v. Roadway Exp., Inc., supra, 481 U.S. at p.
264, 107 S.Ct. 1740), sufficient to enable appellant
to adequately respond at the pretermination stage.
Appellant has failed to show that respondents did
not substantially comply with the pretermination requirements of Skelly.
[8] Constitutional principles of due process do not
create general rights of discovery. (See Holmes v.
Hallinan, supra, 68 Cal.App.4th at p. 1534, 81
Cal.Rptr.2d 174 [peace officer was not entitled to
discovery before termination]; see also Mohilef v.
Janovici (1996) 51 Cal.App.4th 267, 302, 58
Cal.Rptr.2d 721 [no basic constitutional right to
pretrial discovery in administrative proceedings];
cf. Gray v. Netherland (1996) 518 U.S. 152,
169-170, 116 S.Ct. 2074, 135 L.Ed.2d 457 [habeas
corpus petitioner's notice of evidence claim would
require the adoption of a new constitutional rule];
Weatherford v. Bursey (1977) 429 U.S. 545, 559,
97 S.Ct. 837, 51 L.Ed.2d 30 [“no general constitutional right to discovery in a criminal case”].) We
disagree with appellant's suggestion **309 that the
mere fact the City provided him with additional
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materials following his pretermination hearing
proves a Skelly violation. “What Skelly requires is
unambiguous warning that matters have come to a
head, coupled with an explicit notice to the employee that he or she now has the opportunity to engage
the issue and present the reasons opposing such a
disposition.” (Coleman v. Regents of University of
California (1979) 93 Cal.App.3d 521, 525-526, 155
Cal.Rptr. 589.)
[9] Appellant further complains that he “knows,
even if the City will not admit it, that even if the alleged [mis]conduct [had] occurred, he would not
have been terminated had it occurred in a different
context.” However, due process does not require
the City to select, as the basis for its disciplinary
action, instances of misconduct that might be more
difficult to prove or that might compromise other
governmental investigations or prosecutions when
it *1281 has clear-cut evidence of misconduct that
itself justifies dismissal. Appellant did not present
evidence that misuse of CLETS or DMV records
would be an insufficient justification for dismissing
him.
By statute, California Law Enforcement Telecommunications System (CLETS) must “be used exclusively” for official business. (Gov.Code, §
15153.) Knowingly accessing and without permission making use of any data from a computer system is a crime. (Pen.Code, § 502, subd. (c)(2).) The
willful, unauthorized disclosure of information
from any DMV record to any person is a crime. (
Veh.Code, § 1808.45.) Apparently, appellant signed
employment forms indicating that he understood
misuse of public record and CLETS information
made him subject to immediate dismissal.
[10] Since this is a writ proceeding, appellant bore
the burden of pleading and proving that his suspected involvement in the Hostess Bar scandal was the
real reason for the intended disciplinary action, as
opposed to the Department's stated reasons, and the
materials received prior to his Skelly hearing were
not sufficient to provide him an opportunity to
meaningfully respond at the pretermination stage.
Appellant failed to make an adequate showing.
[11] Our decision that the pretermination procedures were constitutionally sufficient partially rests
on the City's provision of a full and fair posttermination hearing since “certain substantive
rights-life, liberty, and property-cannot be deprived
except pursuant to constitutionally adequate procedures.” (Cleveland Bd. of Educ. v. Loudermill,
supra, 470 U.S. at p. 541, 105 S.Ct. 1487.) “The
minimal due process rights required by Skelly prior
to discharge are merely anticipatory of the full
rights which are accorded to the employee after
discharge.” (Kirkpatrick v. Civil Service Com.
(1978) 77 Cal.App.3d 940, 945, 144 Cal.Rptr. 51.)
Appellant recognizes that “[t]his case is not about
the merits of the City's case for terminating [him]”
and “that case is yet to be litigated and decided in
the administrative appeal process.” Appellant must
still be afforded a constitutionally adequate posttermination evidentiary hearing. (See Cleveland Bd.
of Educ. v. Loudermill, supra, 470 U.S. at pp.
545-546, 105 S.Ct. 1487.)
2. Due Process Does Not Disqualify Legal Advisor
to the City
[12] Citing Haas v. County of San Bernardino
(2002) 27 Cal.4th 1017, 119 Cal.Rptr.2d 341, 45
P.3d 280, appellant asserts that the City's legal advisor, Marc Hynes, must be “recused.” Attorney
Hynes has performed various legal services for the
City over the years, including serving as interim
city attorney in 1990.
**310 *1282 Haas involved “a due process challenge to the manner in which some counties select
temporary administrative hearing officers.” (Id. at
p. 1020, 119 Cal.Rptr.2d 341, 45 P.3d 280.) The
Supreme Court determined that the temporary hearing officer in that case had an impermissible pecuniary interest that required disqualification in that
the government unilaterally selected and paid the
officer on an ad hoc basis and the officer's income
from future adjudicative work depended entirely on
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the government's goodwill. (Id. at pp. 1024, 1031,
119 Cal.Rptr.2d 341, 45 P.3d 280.) Appellant maintains that the role of legal advisor in this case is
analogous to the role of the temporary hearing officer in Haas.
This court does not find the analogy apt and is not
persuaded. Appellant is appealing the disciplinary
action to the Personnel Board, not to attorney
Hynes. There has been no showing that attorney
Hynes is an adjudicator on the merits of the disciplinary action or tantamount to one. Insofar as appellant has a concern that Hynes might give the Personnel Board legal advice adverse to his interests at
the post-termination hearing, it is pure speculation.
Hynes's role appears to be limited to that of a professional legal advisor, who presumably is familiar
with applicable law and would be seeking to protect
the City from civil liability for misapplications of
the law.
D. Public Safety Officers Procedural Bill of Rights
Act
1. Section 3303, subdivision (g)
Subdivision (g) of section 3303 mainly concerns
the recording of an interrogation of a public safety
officer under investigation by the officer's employing public safety department. It also provides: “The
public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer
or to any reports or complaints made by investigators or other persons, except those which are
deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer's personnel
file.” (Ibid., italics added.)
Appellant contends that that the City failed to comply with section 3303, subdivision (g), by “failing
to provide him with all of the reports and complaints and underlying data giving rise to the
‘Chief's Case’ report after he was subjected to an
administrative interrogation.” Citing San Diego Po-
lice Officers Assn. v. City of San Diego (2002) 98
Cal.App.4th 779, 120 Cal.Rptr.2d 609 (hereinafter
San Diego ), appellant claims to be entitled to “all
the reports, complaints, and underlying data concerning the misconduct that was the subject of that
investigation, including all of the reports and documents referred to and discussed in that report which
were in turn considered and relied upon by the Department in taking action against [him].”
*1283 Appellant maintains respondents' assertion
that the disciplinary action has a narrow focus is
“belied by the memorandum issued by the Chief”
that indicated he was “placed on leave as a result of
the Korean Hostess Bar investigation” “and by the
innumerable references and allegations in the
‘Chief's Case’ ” that indicated he had “assisted the
owners and operators of the Korean Hostess Bars in
the prostitution business.” In addition, he insists
that there is no factual basis for accepting the City's
confidentiality claims and any confidentiality concern regarding specific materials could be remedied
by redaction.
Respondents seek to distinguish San Diego, asserting that it did not consider the issues of disclosing
criminal investigation records, records of outside
agencies, or confidential records regarding other officers. Respondents contend that nothing **311 in
the Act entitles appellant to “criminal records compiled by any outside agency, including the FBI or
Grand jury.” They assert that the City provided appellant with all records to which he was entitled as
of July 2003, a date prior to any administrative appeal hearing, which still had not been held at the
time of appellate briefing.
Section 3303, subdivision (g), is part of the Public
Safety Officers Procedural Bill of Rights Act. (See
§ 3300.) “ Section 3303 prescribes protections that
apply when a peace officer is interrogated in the
course of an administrative investigation that might
subject the officer to punitive action, such as
‘dismissal, demotion, suspension, reduction in
salary, written reprimand, or transfer for purposes
of punishment.’ (Ibid.) Inherent in this protective
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scheme is a recognition that such investigations are
a necessary component of employment in law enforcement.” (Pasadena Police Officers Assn. v. City
of Pasadena (1990) 51 Cal.3d 564, 574, 273
Cal.Rptr. 584, 797 P.2d 608 [hereinafter Pasadena
].)
“To ensure fair treatment of an officer during an internal affairs interrogation, section 3303 requires
that the employing agency notify the officer to be
interrogated of the identity of the interrogating officers (§ 3303, subd. (b)), and of ‘the nature of the
investigation prior to any interrogation’ ( § 3303,
subd. (c)). It also prohibits abusive interrogation
techniques. (§ 3303, subds. (a) [interrogation to be
conducted at a reasonable hour], (b) [no more than
two interrogators], (d) [length of the interrogation
session not to be unreasonable; subject must be allowed to attend to physical necessities], and (e) [no
abusive language, promises or threats].) If the interrogation focuses on matters likely to result in punitive action against the peace officer, section 3303 allows the officer to designate a representative to be
present at the interrogation, provided that the representative is not someone subject to the *1284
same investigation. ( § 3303, subd. (h) [now subd.
(i) ].) If criminal charges are contemplated, section
3303 requires immediate advisement of the socalled Miranda rights. ( § 3303, subd. (g) [now
subd. (h) ]; Lybarger v. City of Los Angeles, supra,
40 Cal.3d 822, 829 [221 Cal.Rptr. 529, 710 P.2d
329].)” (Pasadena, supra, 51 Cal.3d at p. 574, 273
Cal.Rptr. 584, 797 P.2d 608, fn. omitted.)
In San Diego, supra, 98 Cal.App.4th 779, 120
Cal.Rptr.2d 609, an appellate court construed the
terms “reports” and “complaints” in section 3303,
subdivision (g), to include investigators' raw notes
and tape-recorded interviews of witnesses. (Id. at
pp. 782-785, 120 Cal.Rptr.2d 609.) That court
framed the issue as “whether the Legislature intended that an officer have access only to the final
written report of the investigating officer and to
written complaints by third persons, or whether it
also intended to allow an officer to have access to
the underlying data on which the final report is
based.” (Id. at p. 783, 120 Cal.Rptr.2d 609.)
Despite the fact that section 3303 concerns only the
interrogation of an officer under investigation, the
appellate court in San Diego focused on the ability
of officers to respond to administrative charges of
misconduct. Noting that a public safety officer is
entitled to an administrative appeal from punitive
action under the Bill of Rights Act (§ 3304, subd.
(b)), the court reasoned: “If City is correct that an
accused officer is entitled to only the written complaints filed by third persons and the final written
report prepared by investigators, but not to the underlying materials that might tend to show the complaints or reports were inaccurate, incomplete, or
subject to impeachment for bias, the officer's ability
to establish a defense at the administrative hearing
could be hampered and the rights protected by the
Act undermined.” **312 (San Diego, supra, 98
Cal.App.4th at p. 784, 120 Cal.Rptr.2d 609.)
The appellate court found support for its analysis in
the Supreme Court's Pasadena decision, stating:
“The Pasadena court also recognized that ‘[s]ome
of the rights that the Act affords peace officers resemble those available in a criminal investigation,’
and concluded that because the Act appeared to
borrow from the criminal law procedural rules, the
criminal law approach to the timing of discovery
(which gives no right to discovery until after the
charges have been filed) was a persuasive reason
for concluding that an accused officer was not entitled to discovery until after he or she was interrogated. (Pasadena, supra, 51 Cal.3d at pp. 578-579,
273 Cal.Rptr. 584, 797 P.2d 608.) ” (San Diego,
supra, 98 Cal.App.4th at p. 784, 120 Cal.Rptr.2d
609, fn. omitted.) The San Diego appellate court
proceeded to observe: “A criminal defendant would
be entitled to raw notes or tape-recorded statements
of witnesses preserved by the police. (See generally
Thompson v. Superior Court (1997) 53 Cal.App.4th
480, 484-487 [61 Cal.Rptr.2d 785] [raw notes can
constitute ‘ “reports of the statements” of *1285
witnesses' disclosable under Pen.Code, §§ 1054.1,
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subd. (f) and 1054.3, subd. (a) ]; In re Gary G.
(1981) 115 Cal.App.3d 629, 639-642 [171 Cal.Rptr.
531] [no duty to preserve notes but investigators'
raw notes should be turned over if in existence
when discovery order entered].)” (San Diego,
supra, 98 Cal.App.4th at pp. 784-785, 120
Cal.Rptr.2d 609.) The appellate court then concluded that “[b]ecause the Act provides an officer
with protections similar to those provided criminal
defendants by criminal law procedural and discovery rules,” an officer was entitled to “protections
similar to those enjoyed by criminal defendants, including the rights to raw notes and tape-recorded
statements of witnesses preserved by City” under
section 3303, subdivision (g). (Id. at p. 785, 120
Cal.Rptr.2d 609.)
We respectfully disagree with the conclusions
reached in San Diego. Pasadena, supra, 51 Cal.3d
at pages 568-569, 273 Cal.Rptr. 584, 797 P.2d 608,
considered only the “narrow issue” “whether
[former] subdivision (f) [now (g) ] manifests a legislative intent to grant preinterrogation discovery
rights to a peace officer who is the subject of an internal affairs investigation.” The Supreme Court
held that “the Legislature intended subdivision (f)
to require law enforcement agencies to disclose reports and complaints to an officer under an internal
affairs investigation only after the officer's interrogation.” (Id. at p. 579, 273 Cal.Rptr. 584, 797
P.2d 608.)
[13][14][15] The appellate court in San Diego extrapolated from the Supreme Court's reasoning in
Pasadena to infer a Legislative intent to provide
broad criminal-discovery-like rights to officers under investigation, which is not apparent from the
language of section 3303. “Under well-established
rules of statutory construction, we must ascertain
the intent of the drafters so as to effectuate the purpose of the law. [Citation.] Because the statutory
language is generally the most reliable indicator of
legislative intent, we first examine the words themselves, giving them their usual and ordinary meaning and construing them in context. [Citation.]
When statutory language is clear and unambiguous,
‘ “there is no need for construction and courts
should not indulge in it.” ’ [Citation.]” (Esberg v.
Union Oil Co. (2002) 28 Cal.4th 262, 268, 121
Cal.Rptr.2d 203, 47 P.3d 1069.)
[16] In addition, the rule of statutory construction
that requires courts to construe statutes to avoid
constitutional infirmities does not come into play
unless there is an ambiguity that raises serious constitutional**313 questions. (See People v. Anderson
(1987) 43 Cal.3d 1104, 1146, 240 Cal.Rptr. 585,
742 P.2d 1306.) The fact that due process may require sufficient notice of the facts to enable an officer to meaningfully defend himself or herself if
the officer is administratively charged does not require expansive judicial construction of the phrase
“any reports or complaints made by investigators or
other persons” at the earlier investigation stage.
*1286 In the context of an investigation, a “report”
would be generally defined as a detailed account or
statement (Merriam-Websters Collegiate Dictionary
(10th ed.2001) p. 990) and a “complaint” would be
generally defined as “a formal allegation against a
party” (id. at p. 234). Both “report” and
“complaint” suggest a more formal presentation
than the raw or original source materials from
which a report may be drawn. This construction is
consistent with the objectives of the Bill of Rights
Act.
[17] “The purpose of the Act is ‘to maintain stable
employer-employee relations and thereby assure effective law enforcement.’ (Lybarger v. City of Los
Angeles (1985) 40 Cal.3d 822, 826 [221 Cal.Rptr.
529, 710 P.2d 329]; § 3301.) The Act requires that
law enforcement agencies throughout the state afford minimum procedural rights to their peace officer employees. ( § 3300 et seq.; Baggett v. Gates
(1982) 32 Cal.3d 128, 135 [185 Cal.Rptr. 232, 649
P.2d 874]; White v. County of Sacramento (1982)
31 Cal.3d 676, 679 [183 Cal.Rptr. 520, 646 P.2d
191].)” (Pasadena, supra, 51 Cal.3d at p. 572, 273
Cal.Rptr. 584, 797 P.2d 608, fn. omitted.)
“Although notions of fundamental fairness for po-
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lice officers underlie the Act, a number of its provisions also reflect the Legislature's recognition of
the necessity for internal affairs investigations to
maintain the efficiency and integrity of the police
force serving the community.” (Ibid.)
“Protection of peace officers from abusive or arbitrary treatment in their employment is the essence of
the Act.” (Pasadena, supra, 51 Cal.3d at p. 577,
273 Cal.Rptr. 584, 797 P.2d 608.) In Pasadena, the
touchstone of the Supreme Court's analysis was
“fundamental fairness.” (Id. at p. 578, 273 Cal.Rptr.
584, 797 P.2d 608.) The court stated: “Because entitlement to preinterrogation discovery is neither
apparent from the language of subdivision (f) nor
fundamental to the fairness of an internal affairs investigation, and because such mandatory discovery
might jeopardize public confidence in the efficiency and integrity of its police force, we decline
to engraft such a right onto the Act.” (Id. at p. 579,
273 Cal.Rptr. 584, 797 P.2d 608.) It explained:
“Unlike other protections set forth in the Act, a
right to preinterrogation discovery is not essential
to the fundamental fairness of an internal affairs investigation. Indeed, the right to discovery before interrogation and before charges have been filed ... is
without precedent.” (Id. at p. 578, 273 Cal.Rptr.
584, 797 P.2d 608.)
[18][19] The main purpose of section 3303 is to
govern the conduct of an interrogation of an officer
who is under investigation, thereby preventing abusive tactics. The only “notes” to which such officer is expressly entitled under section 3303, subdivision (g), are the “notes made by a stenographer,” who was implicitly present at the officer's interrogation. Fair treatment of such officer does not
require that all the material amassed in the course
of the investigation, such as raw notes, written
communications, records obtained, *1287 and interviews conducted, be provided to the officer following the officer's interrogation. Nothing in the Act's
language or legislative history reveals a Legislative
intent to provide an officer who is the subject**314
of an administrative internal affairs investigation
with broad statutory discovery rights similar to
those held by criminal defendants. As the Supreme
Court observed in Pasadena, “[s]ubdivision (f)
[now (g) ] defines only disclosure requirements incident to an investigation; it does not address an officer's entitlement to discovery in the event he or
she is administratively charged with misconduct.” (
Pasadena, supra, 51 Cal.3d at p. 575, 273 Cal.Rptr.
584, 797 P.2d 608, italics in original.)
[20] The express language of section 3303, subdivision (g), however, does encompass reports made by
persons other than agency's investigators. Consequently, we cannot agree that the mere fact that a
report originated from a criminal investigation,
either by the employing public safety department or
an outside agency, necessarily excuses the department from making such report available where it
has been expressly made part of the department's
internal affairs investigation of an officer. While respondents correctly point out that section 3303 does
not apply “to an investigation concerned solely and
directly with alleged criminal activities” ( § 3303,
subd. (i), italics added), the Department's investigation at issue here was an internal affairs investigation, not exclusively a criminal investigation, and,
therefore, the investigation was subject to section
3303, subdivision (g).
[21] Respondents also maintain that appellant Gilbert is not entitled to records of other agencies' investigations because the Department “had little or
no involvement in those outside agency investigations” and it “does not possess those records” or
“have any right to them.” Again, nothing in section
3303, or the cases relied on by respondents, absolves a department from providing any report expressly included in its investigation merely because
the report arose in another agency's investigation or
because the original document is physically in the
possession of that outside agency. Those cases
merely indicate that section 3303 is inapplicable
when the interrogator is not the officer's
“commanding officer, or any other member of the
employing public safety department” ( § 3303) or
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when the officer is the subject of an independent investigation or interview by an outside agency.
In Seligsohn v. Day (2004) 121 Cal.App.4th 518,
520-521, 16 Cal.Rptr.3d 909, complaints against
two police officers employed by a community college were filed with the college's Office of Affirmative Action. The appellate court determined that
no production of materials pursuant to section 3303
, subdivision (g), was required where the interrogation of police officers was not “undertaken by the
commanding officer, or any member of the *1288
employing public safety department” but rather by
an associate dean of the college who coordinated
the college's Office of Affirmative Action and a
private investigator employed by the associate
dean. (Id. at pp. 521, 524, 16 Cal.Rptr.3d 909.)
However, the court concluded that section 3305,
entitling a public safety officer to read any adverse
comment entered in his personal file, applied to the
complaints against the officers, copies of which
were sent to the officers' superior. (Id. at pp. 521,
531, 16 Cal.Rptr.3d 909.)
In Alhambra Police Officers Ass'n v. City of Alhambra Police Dept. (2003) 113 Cal.App.4th 1413,
1417, 7 Cal.Rptr.3d 432, for example, the Los
Angeles County Sheriff's Department conducted an
independent criminal investigation of Officer Marquez, who was employed by the Alhambra Police
Department, and, in the course of that criminal investigation, the Sheriff's Department interviewed
another Alhambra officer, Officer Torrance. The
appellate court determined that the Act **315 had
no application to the interview of Officer Torrance
because the Sheriff's Department was an outside
agency and was not acting in concert with, or as an
agent of, the police department. (Id. at pp.
1421-1422, 7 Cal.Rptr.3d 432.)
In California Correctional Peace Officers Assn. v.
State of California (2000) 82 Cal.App.4th 294, 98
Cal.Rptr.2d 302, the reviewing court found that the
State Department of Justice (DOJ) had acted in
concert with the California Department of Corrections (CDC) when the DOJ investigated alleged
misconduct by state correctional officers and interFN4
rogated them
and, consequently, the protections of section 3303, subdivision (g), applied even
though the DOJ was not their employer. (Id. at p.
307, 98 Cal.Rptr.2d 302.) Even in that case, the
court recognized that “[s]ection 3309.5 authorizes
injunctive relief only as to the employing public
safety department, which is the CDC” and to the
extent the injunction issued by the lower court included the DOJ, an outside agency, it was unauthorized by section 3309.5. (Id. at p. 312, 98
Cal.Rptr.2d 302.)
FN4. The evidence in California Correctional Peace Officers Assn. v. State of
California, supra, 82 Cal.App.4th 294, 98
Cal.Rptr.2d 302, established that the CDC
requested the assistance of the DOJ to investigate the alleged wrongdoing and the
agencies were in effect conducting a joint
investigation. (Id. at pp. 299, 307, 98
Cal.Rptr.2d 302.) The reviewing court
reasoned: “The CDC did not merely order
the correctional officers to cooperate with
the DOJ investigation, but delivered interviewees to DOJ investigators, and
threatened them with arrest and/or discipline if they asserted their rights during interrogation by DOJ agents. Until they had
given statements, correctional officers
were prevented from leaving prison
grounds by their employer. Hallway exits
and interrogation rooms were guarded by
the CDC. The interviews took place during
work hours or immediately thereafter, on
work premises. Upon being told by DOJ
interrogators that an officer was not
providing satisfactory responses during the
interrogation, CDC employees threatened
the officers with criminal and disciplinary
sanctions. Under these circumstances, the
CDC and the DOJ must be considered to
have been acting in concert.” (Id. at p. 307,
98 Cal.Rptr.2d 302.) The appellate court
acknowledged that if “the DOJ conducted
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a substantially independent investigation,
the provisions of section 3303 would have
been inapplicable.” (Id. at p. 312, 98
Cal.Rptr.2d 302, fn. omitted.)
*1289 Appellant Gilbert has not sought relief
against the FBI or any other outside agency. The
Department is plainly subject to the disclosure requirements of section 3303 since it interrogated appellant in the course of its internal affairs investigation.
We find respondents' lack of possession argument
somewhat perplexing since the documents sought
by appellant were incorporated into the Chief's
Case. The reasonable inference from reading the
Chief's Case is that the Department had access to
the reports incorporated into its investigation. Under section 3303, subdivision (g), the Department
was generally required to provide any report by any
person following appellant's interrogation. Logically, any report or complaint included in a department's internal affairs investigation of its officer is
covered by section 3303, subdivision (g), if the department has possession or control of the document
or reasonable access to it. (Cf. In re Littlefield
(1993) 5 Cal.4th 122, 135, 19 Cal.Rptr.2d 248, 851
P.2d 42 [prosecution's duty to disclose].) Presumably, an accurate copy would suffice. The only statutory exception to the disclosure requirement in
section 3303, subdivision (g), is for items “deemed
by the investigating agency to be confidential.”
Interestingly, respondents have not expressly
claimed that any document sought by appellant was
acquired in confidence from an outside agency. Instead, they assert on appeal that appellant is not entitled**316 to the confidential personnel records of
other officers, citing Penal Code sections 832.7 and
832.8 and San Diego Police Officers Assn. v. City
of San Diego Civil Service Com. (2002) 104
Cal.App.4th 275, 128 Cal.Rptr.2d 248.
Penal Code section 832.7 provides in pertinent part:
“Peace officer or custodial officer personnel records and records maintained by any state or local
agency pursuant to Section 832.5, or information
obtained from these records, are confidential and
shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections
FN5
1043 and 1046 of the Evidence Code.”
Penal
Code section 832.8 defines “personnel records,” as
used in Penal Code section 832.7, to mean “any file
maintained under that individual's name by his or
her employing agency” and containing records
*1290 relating to specified matters, including employee discipline, “[c]omplaints, or investigations
of complaints, concerning an event or transaction in
which he or she participated, or which he or she
perceived, and pertaining to the manner in which he
or she performed his or her duties,” and “[a]ny other information the disclosure of which would constitute an unwarranted invasion of personal privacy.” (Pen.Code, § 832.8, subds.(d), (e), and (f).)
FN5. Penal Code section 832.5 states in
part: “Complaints and any reports or findings relating to these complaints shall be
retained for a period of at least five years.
All complaints retained pursuant to this
subdivision may be maintained either in
the peace or custodial officer's general personnel file or in a separate file designated
by the department or agency as provided
by department or agency policy, in accordance with all applicable requirements of
law.” “Both the individual officer [whose
records are involved] and the law enforcement agency are entitled to claim the confidential personnel records privilege of
Penal Code section 832.7.” (Abatti v. Superior Court (2003) 112 Cal.App.4th 39,
57, 4 Cal.Rptr.3d 767.)
In San Diego Police Officers Assn. v. City of San
Diego Civil Service Com., supra, 104 Cal.App.4th
at page 287, 128 Cal.Rptr.2d 248, the appellate
court, after extensive analysis, held that “ section
832.7 provides that peace officer personnel records,
as defined in section 832.8, are confidential.” It disagreed with Bradshaw v. City of Los Angeles
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(1990) 221 Cal.App.3d 908, 270 Cal.Rptr. 711,
which had held that Penal Code section 832.7 only
limits disclosure in civil and criminal proceedings (
id. at pp. 916, 919, 270 Cal.Rptr. 711), and concluded that Penal Code section 832.7 recognizes the
confidentiality of peace officer personnel records
regardless of the context in which the records are
sought. (San Diego Police Officers Assn. v. City of
San Diego Civil Service Com., supra, 104
Cal.App.4th at pp. 284-285, 128 Cal.Rptr.2d 248.)
[22] While we find the reasoning of San Diego Police Officers Assn. v. City of San Diego Civil Service Com. sound, we have no way to evaluate the
documents sought by appellant since they are not
part of the record before us. More significantly,
section 3303, subdivision (g), empowers the investigating agency to deem reports confidential and excepts items so designated from the agency's disclosure obligation. Nothing in the section limits an investigating agency's power to designate reports
confidential to materials protected by statutory
privilege. Logically, an investigating agency exercising its power under section 3303, subdivision
(g), could choose to deem portions of a report confidential, which in effect is what the Department
impliedly did in this case by providing only limited
disclosures in the Chief's Case. In response to the
writ petition, the City of Sunnyvale asserted that
“the peripheral documents and materials to which
[Gilbert] **317 claims he has been denied access
are covered by the exception for confidential materials.”
Under section 3303, subdivision (g), the repercussion of deeming an item confidential is that it may
not be entered in the officer's personnel file. The
implication is that the employing department may
not make adverse personnel decisions concerning
the officer based on reports, or the portions thereof,
deemed confidential and not made available to the
officer. Section 3305 provides: “No public safety
officer shall have any comment adverse to his interest entered in his personnel file, or any other file
used for any *1291 personnel purposes by his em-
ployer, without the public safety officer having first
read and signed the instrument containing the adverse comment indicating he is aware of such comment, except that such entry may be made if after
reading such instrument the public safety officer refuses to sign it.” Section 3306 establishes a public
safety officer's right to file a written response to
any adverse comment entered in his personnel file.
Section 3306.5 generally requires an employer,
upon request, to permit an officer to inspect personnel files used to make personnel determinations
concerning that officer, including termination or
other disciplinary action.
It is unreasonable to suppose that the Legislature
intended section 3303, subdivision (g), to afford an
officer under investigation far-reaching disclosure
rights, akin to the statutory discovery rights in
criminal prosecutions, following an administrative
interrogation of the officer when the Act does not
expressly so provide but rather gives the investigating agency power to deem reports confidential, excludes such confidential items from the duty to disclose, and provides no mechanism for challenging
such designation. The more reasonable interpretation, in light of the other features of section 3303
and other provisions of the Bill of Rights Act, is
that the minimal rights of disclosure included in
subdivision (g) were intended to prevent grossly abusive interrogation tactics and protect an officer's
personnel file.
[23] Although appellant Gilbert complains that
“[t]he City never asserted such a [confidentiality]
justification for withholding information from Gilbert until after he filed his writ petition,” appellant
has not carried his burden of pleading and proving
that the Department had a present duty under section 3303, subdivision (g), to disclose the additional
materials he seeks in this proceeding (see California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at pp 1153-1154, 43
Cal.Rptr.2d 693, 899 P.2d 79) since, as we have indicated, the right to deem reports confidential under
section 3303, subdivision (g), rests with the of-
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ficer's employing department. “Two basic requirements are essential to the issuance of the writ: (1) A
clear, present and usually ministerial duty upon the
part of the respondent [citations]; and (2) a clear,
present and beneficial right in the petitioner to the
performance of that duty [citation].” (People ex rel.
Younger v. County of El Dorado (1971) 5 Cal.3d
480, 491, 96 Cal.Rptr. 553, 487 P.2d 1193.)
While appellant Gilbert has not established entitlement to mandamus relief to force disclosure under
section 3303, subdivision (g), our conclusions regarding the scope of section 3303 in no way affects
or limits his rights of *1292 due process in the administrative appeal process challenging his termination. (See Cleveland Bd. of Educ. v. Loudermill,
supra, 470 U.S. at p. 541, 105 S.Ct. 1487.)
2. Other Remedies under the Bill of Rights Act
Appellant maintains that he is entitled to additional
statutory remedies under the **318 Act because respondents failed to provide him with all the data
and materials underlying the Chief's Case following
his interrogation, “insisting that he participate in a
Personnel Board hearing without having received
those materials,” and, thereby, depriving him of a
meaningful administrative appeal. Specifically, he
seeks an award of backpay commencing March 1,
2003 and continuing until respondents comply with
the Act, attorney fees, civil penalties, and an order
prohibiting the Department from taking punitive action against him.
Section 3309.5, subdivision (d), provides in part:
“In any case where the superior court finds that a
public safety department has violated any of the
provisions of this chapter, the court shall render appropriate injunctive or other extraordinary relief to
remedy the violation and to prevent future violations of a like or similar nature, including, but not
limited to, the granting of a temporary restraining
order, preliminary, or permanent injunction prohibiting the public safety department from taking any
punitive action against the public safety officer.”
Assuming backpay in certain circumstances would
be appropriate relief under section 3309.5 (Henneberque v. City of Culver City (1985) 172
Cal.App.3d 837, 842, 844, 218 Cal.Rptr. 704
[backpay authorized]; see Williams v. City of Los
Angeles (1988) 47 Cal.3d 195, 203-204, 252
Cal.Rptr. 817, 763 P.2d 480 [“a trial court has
broad discretion in fashioning a remedy for a violation of the act,” “no basis for a complete ban on exclusion of evidence as a remedy”] ), we cannot conclude the superior court acted improperly in denying a backpay remedy in this case. As discussed
above, appellant has not established that, under section 3303, subdivision (g), he is entitled to any remaining document to which he has been denied access.
As to the documents provided by the City Attorney
in June 2003 and itemized in her letter of June 23,
2003, appellant has not shown that each constituted
a “report” or “complaint” under section 3303, subdivision (g), as this court has interpreted those
terms. Appellant's employee statement forms, for
example, do not appear to be reports or complaints.
In addition, appellant has not presented evidence
establishing that Department provided untimely access to any report or complaint ultimately provided
in June 2003. For *1293 example, the Chief's Case
indicated that the Department's criminal investigation was still active. Consequently, at the time the
Chief's Case issued, the criminal investigation report (CR 02-11786) was still impliedly confidential.
Appellant received the Chief's Case, an extremely
comprehensive report that identified the source materials in detail and included excerpts of telephone
conversations and transcribed statements, and 10
audiotapes following his interrogation. The record
does not show that appellant's former attorneys,
who represented him at the Skelly hearing on February 20, 2003, requested, but were denied, access
to any nonconfidential document identified in the
Chief's Case. While section 3303, subdivision (g),
entitled appellant access to all nonconfidential reports and complaints, the appellate record indicates
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that appellant did not seek disclosure of additional
materials until after the Skelly hearing. The appellate record reflects that appellant's current attorney
requested additional materials from the Sunnyvale
City Attorney in a June 9, 2003 letter and received
certain materials, including the crime investigation
report (CR 02-11786) and a redacted FBI undercover report, that month.
Section 3303, subdivision (g), does not specify any
time frame for disclosure and, as mentioned above,
the California Supreme Court has determined no
disclosure is required before interrogation. **319(
Pasadena, supra, 51 Cal.3d at p. 579, 273 Cal.Rptr.
584, 797 P.2d 608.) Consequently, a reasonable,
post-interrogation time frame is implied. (See
Dougery v. Bettencourt (1931) 214 Cal. 455, 465, 6
P.2d 499; cf. In re Steele (2004) 32 Cal.4th 682,
692, fn. 2, 10 Cal.Rptr.3d 536, 85 P.3d 444.) Where
a department does not provide disclosure upon informal request, an interrogated officer may seek
court enforcement of the disclosure required by section 3303, subdivision (g), pursuant to section
3309.5. Upon an adequate showing of entitlement,
the court is not obligated to provide any specific
remedy and it might, for example, conclude the appropriate relief is immediate disclosure. In this
case, the trial court could reasonably conclude that
appellant failed to establish that qualifying materials were not provided within a reasonable time
upon informal request and appellant is not statutorily entitled to any further disclosures at present.
backpay or other requested remedies at this time.
*1294 E. Disposition
The February 25, 2005 order of the court denying
the petition for writ of mandate is affirmed. Appellant shall bear costs on appeal.
WE CONCUR: RUSHING, P.J., and PREMO, J.
Cal.App. 6 Dist.,2005.
Gilbert v. City of Sunnyvale
130 Cal.App.4th 1264, 31 Cal.Rptr.3d 297, 05 Cal.
Daily Op. Serv. 5998, 2005 Daily Journal D.A.R.
8193
END OF DOCUMENT
Finally, the parties indicate that an administrative
appeal hearing had not been held as of the filing of
the appellate briefs. It is entirely premature to evaluate the adequacy of any administrative appeal proFN6
cess.
FN6. “An administrative appeal instituted
by a public safety officer under this
chapter shall be conducted in conformance
with rules and procedures adopted by the
local public agency.” (§ 3304.5.)
In sum, the record does not support an award of
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